With a Vote of 52% - Less Than Required for a Bond Measure - Decades of Social Justice Could Be Undone...
By Jon Ponder on 11/25/2008, 4:37pm PT  

Guest blogged by Jon Ponder, Pensito Review.

In their outreach to blacks, Latino, Asians and other minority voters, the conservative operatives behind Proposition 8 neglected to mention a key aspect of the initiative that could contribute to rolling back minority rights for years to come.

Prop 8 not only rendered quaint the California Constitution's equal protection clause --- a foundational precept that instructs the state to protect the rights of all citizens equally --- it also rescinded the right to marry for California gays. This sets it apart from other states' anti-gay marriage amendments because it establishes a precedent for conservative efforts to curb minority rights using ballot initiatives and by other means:

California's gay marriage ban could open the door to legal discrimination against unpopular groups if the state Supreme Court allows the voter-approved measure to stand, blacks, Latinos, Asians and other minorities said...

Legal scholars say the measure, which defines marriage as between a man and a woman, breaks new ground by limiting the courts' ability to protect minorities.

"They could take away any right from any group," said University of Southern California Law Professor David Cruz, who filed a brief in favor of gay marriage in an earlier case.

The ban ... amended the constitution with 52 percent support --- less than is required to approve some state bond measures.

"The entire purpose behind the constitutional principle of equal protection would be subverted if the constitutional protection of unpopular minorities were subject to simple majority rule," read a brief by black, Asian and Hispanic groups challenging the ban. "This case is not simply about gay and lesbian equality."

Despite the peril it presents to American social justice, legal experts say that the California Supreme Court is unlikely to overturn Prop 8 because they view it as having been passed within the parameters of existing law.